REF/2008/1199, 1167 & 1205

 

THE ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY

LAND REGISTRATION ACT 2002

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

 

BETWEEN

YVONNE TURBERVILLE SMITH

 

APPLICANT

 

and

 

(1)   SARAH AMANDA HEARN

(2)   ANDREW PHILIP HEARN

(3)   NORMAN CLIVE DAVID SAVORY JORY

(4)   KATHERINE LUCY GERALDINE JORY

 

RESPONDENTS

 

Property Address: Land on the south east side of Nansmellyon Road, Mullion

Title Number: CL246381 and CL252717

 

 

Before: Mr Michael Michell Deputy Adjudicator to HM Land Registry

 

Sitting at: The Law Courts, Truro

 

 

Applicant Representation: Mr Andrew Eaton Hart, counsel, instructed by

Stephens and Scown

 

Respondent Representation: Mr Rawdon Crozier, counsel, instructed by

Brown-Hovelt Veale Nelson

 

 

___________________________________________________________________________­

 

DECISION

___________________________________________________________________________

 

FIRST REGISTRATION –ADVERSE POSSESSION – WHETHER FACTUAL POSESSION AND INTENTION TO POSSESS – WHETHER ACKNOWLEDGEMENT OF TITLE-

 

Cases referred to

 

JA Pye (Oxford) Ltd. v Graham [2002] UKHL 30

London Borough of Lambeth v. Bigden (CA 1.12.2000 unreported)

 

 

 

1. Mrs Turberville Smith is the registered proprietor of land at Mullion (“the field”) registered under title number CL180688. Mrs Turberville Smith made an application dated 25 February to be registered as proprietor of an adjoining area of land. The Respondents, Mr and Mrs Hearn and Mr and Mrs Jory objected to the application on 1 April 2008. On 1^st August 2008 Mr and Mrs Jory applied to register a transfer to them of land at Mullion (“the Disputed Land”) dated 30 July 2008. The Applicant, Mrs Turberville Smith objected to that application on the grounds that she had acquired title to the land by adverse possession.

 

Mrs Turberville Smith’s case

2. Mrs Turberville-Smith’s case is that from 1993 she rented the field and used it to graze horses and ponies. From that time, she claims that she also used the Disputed Land, grazing it, having it topped and pulling ragwort. In 12 March 2002 Mrs Turberville Smith and her then husband Oliver Turberville Smith purchased the field. The field was transferred into Mrs Turberville Smith’s sole name in 2005.

 

Mr and Mrs Jory’s title

3. The late Mrs Daphne Elizabeth Geraldine Jory (“the late Mrs Jory”) purchased the Disputed Land from Mr John Pengilly. The land was conveyed to her by a Conveyance dated 31^st December 1965 for the sum of £1,000. The Conveyance included at clause 2 a covenant by the late Mrs Jory to erect and maintain a stock proof fence not less than 4 feet 6 inches in height on the western and southern sides of the property conveyed. It is not in dispute that the covenant was to fence along the boundary nearest to Steephurst and along the boundary between the Disputed Land and the remainder of the field. The late Mrs Joryn died on 30^th August 1988 and on 29^th December 1988 a grant of probate to her estate was made to Basil John Earnest Veale and Michael Henry Garrood. Both executors have since died; Mr Veale died on 8^th September 2000 and Mr Garood died on 16^th April 2001. Mrs Elizabeth Anne Lloyd Garood, the widow of Mr Garood took a grant of probate to her late husband’s estate on 20^th November 2003. As executor of the last executor of the late Mrs Jory, Mrs Garood executed the transfer of the Disputed Land to Mr and Mrs Jory dated 30^th July 2008 that occasioned Mr and Mrs Jory’s present application for first registration.

The Facts

4. At some time in the past there was a single large field on the south side of Nansmellyon Road bearing Ordnance Survey enclosure number 293. The enclosure was at some later time renumbered 4014. A part of the field adjoining Nansmellyon Road was sold off and a bungalow, now called Sttephurst, was built upon it. Steephurst must at one time have been surrounded on three sides by the remainder of the field. The Disputed Land is part of what was the single field. It lies to the south west of Nansmellyon Road. There is a Cornish hedge along the north western side of the Disputed Land, with a stile in the hedge towards the north eastern corner. On the north east side the Disputed Land borders the garden of Glenmoor, a property currently owned by Respondents, Mr and Mrs Hearn. There is a hedge along the boundary with Glenmoor. and on the Disputed Land inside the hedge is a post and wire fence erected by a Mr Williams on the instructions of Mrs Turberville Smith in 2006. On the south western side, the Disputed land borders a footpath that runs beside the grounds of the house called “Steephurst”. There is a post and wire fence along that boundary. The posts are made of concrete with wire running through pre-formed holes in the posts. There is an issue as to what, if anything, marked the south eastern boundary of the land, being the boundary where it adjoins the land owned by Mrs Turberville Smith.

 

5. Mrs Turberville Smith’s evidence was that she in 1993 she and her former husband started to rent the field from the then owner, Mr Michael Wood. She did not produce any tenancy agreement or grazing licence. Mrs Wood used the field to graze horses and ponies. There were a maximum of 5 horses in the field at any one time. Mrs Wood said there was in 1993 no fence between the Disputed Land and the remainder of the field so her horses would go onto the Disputed Land. However, she did say there was an area where there was rubble with wire in the rubble.

 

6. Mrs Turberville Smith’s evidence that her horses were on the Disputed Land was supported by the evidence of Mr Michael Stevens, a local farrier. He gave evidence of trimming the hooves of a small grey pony on the Disputed Land just by the stile. He could say that the incident happened about 15 years ago because the horse in question is now between 15 and 16 years old. Mr Stevens had to work in the field in deep mud and on a very cold day, so the occasion stuck in his mind. He said that he would not have seen or notice if there was a fence along the boundary between the field and the Disputed Land.

7. There was a dispute as to whether there was a fence between the Disputed Land and the field. There plainly was a fence there in the 1970s. There were a number of photographs put in evidence. The earliest was a black and white aerial photograph thought to have been taken in the mid 1970s. The photograph is taken looking eastwards with the yard and buildings of Trenance Farm in the foreground. Beyond can be seen most of the field, including Steephurst and the Disputed Land. The photograph shows what in my judgment appears quite clearly to be a fence along the south east boundary of the Disputed Land. The fence is approximately along the same line as the south eastern boundary of Steephurst. However, it is also clear that by 1990 that fence was, in part, in poor condition. Mr Jory gave evidence that he visited the Disputed Land in 1990 and walked on it. He said that he noted a wire fence along the south eastern boundary of the Disputed Land but that it was broken down in the south west corner closest to Steephurst. Mr Jory was a careful witness who gave his evidence in a thoughtful and moderate way. I have no hesitation in accepting his evidence.

 

8. On 19^th September 1994 Mrs Barker, the daughter of the late Mrs Jory, wrote to the solicitor dealing with her mother’s estate, Mr Veale of Brown-Hovelt Veale Nelson. The purpose of the letter was to send Mr Veale the answers to some questions he had received fom the Capital Taxes Office concerning the Disputed Land. Mrs Barker enclosed a photograph of the Disputed Land said to have been taken in the summer of 1993. A copy of the photograph cannot now be found. In her letter Mrs Barker referred to post and barbed wire staking out the boundary of the Disputed Land and, obviously referring to the photograph wrote

“You will notice that the barbed wire has been rolled back from the left hand side up to the third post from the right. There had been tremendous rain just before my visit; the cowpats were new”.

In her enclosed answers to the questions from the Capital Taxes Office, Mrs Barker wrote that the field was owned by a neighbouring farmer and he was still using the Disputed Land for grazing cattle as evidenced by the cowpats in the photograph taken in July 1993.

 

9. Mr Hocking also gave evidence about a fence between the Disputed Land and the field. He is a surveyor practising in Falmouth who had advised Mr and Mrs Jory in connection with trying to obtain planning permission for the Disputed Land in the 1990s. He still retains his file for that period. In 1995 he received instructions to obtain a quotation for carrying out works to the fencing between the Disputed Land and the field. He produced from his file relating to the Jorys’ affairs in the 1990s, a letter he wrote to a Mr G Rose on 23 August 1995 referring to then recent telephone conversations and a quotation to carry out repairs and fencing work to a plot of land at Mullion. He went on to write

“I understand the cost of providing 10 circular stakes , 1 roll of barbed wire and labour to carry out repairs, strengthening and renewal works will amount to no more than a maximum of £220. I can confirm that this quote is acceptable to my client and that you should proceed along the lines discussed. I understand from our recent telephone conversation that you hope to be in a position to carry out works either during the latter part of this week or early next week”.

Mr Hocking sent a copy of that letter to Mr Barrington of Hine Stonehouse & Barrington, a firm of solicitors who were then acting for the Jory family. Mr Hocking said in the letter that he understood from a neighbour whose land abuts the site that the fence was continually repaired and subsequently taken down by person unknown. Mr Barrington replied on the 25^th August 1995 suggesting that Mr Rose be asked to check as he passed by to see if any damage was done to the fence he was to erect. Mr Hocking also produced from the same file an invoice from Mr Rose for £220 for fencing work carried out at Mullion. The work done was described in the invoice as

“Replace missing concrete posts with 5’6” wooden stakes Clear all old barbwire and replace with 3 strands of new”.

Mr Hocking sent the invoice to Mr Barrington under cover of a letter dated 8 September 1995. Mr Hocking also enclosed his own invoice for £25 for his own time “for arranging works, inspecting the site etc.”. Mr Hocking said in the letter that as he was fairly frequently in the Mullion area, he would make a point of inspecting the site “to ensure all is satisfactory”.

 

10. Mr Hocking in his oral evidence said that he did visit the Disputed Land in 1994 and he noted there was a fence along the south eastern boundary. He said that he would have visited in 1995 in order to see what work was needed so that he could instruct Mr Rose and that he would have visited after the work was done. He did charge in September 1995 for inspecting the site. However, after the expiry of time since 1995 he does not now have any clear recollection of having gone to the Disputed Land.

 

11. Mrs Turberville Smith’s evidence was that she did not see anyone put up posts and wire in 1995 and that she did not see any fence posts along the boundary between the field and the Disputed Land. Mr Williams also gave relevant evidence. He now lives with Mrs Turberville Smith but is a farmer who has lived in the area for some time. He said that he first went into the field in 1995 or 1996 when he cut the grass in the field for Mr and Mrs Turberville Smith. He said that he did not see any fence between the field and the Disputed Land and that he would have seen a fence if there had been one. He was very reluctant to admit that the black and white photograph taken in the 1970s showed a fence between the field and the Disputed Land and he explained the straightline visible in the other aerial photographs as being a line of brambles.

 

12. Mr Hearn purchased Glenmoor in 2003. He said that when he first came to Glenmoor, the Disputed Land was overgrown, fenced off from the field and not used. He said that the fence was made of concrete posts with wire and that the fence was complete at the end nearest Glenmoor. In cross-examination he said that he had been on the land and seen the fence. The wire was wire mesh in a diagonal pattern. I think he was referring to chain link fencing. This is different from the fence along the side nearest Steephurst which comprises concrete posts with single strands of wire passing through pre-formed holes in the posts. His evidence that the fence comprised in part chainlink fencing contrasts with Mrs Barker’s statement in her letter of 19^th September 1994 that the fence was of posts and barbed wire and also with the invoice Mr Rose sent to Mr Hocking which refers to replacing old barbed wire with new. Mr Hearn said that he noticed in December 2006 that Mrs Turberville Smith had taken down part of the boundary fence but he did not in fact see Mrs Turberville Smith take it down. His evidence was in substance that he noticed in December 2006 part of the fence was down.

 

13. The photographic evidence in addition to the black and white aerial photograph included a photograph taken from the sales brochure of Glenmoor prepared at the time of the sale of Glenmoor to Mr and Mrs Hearn in 2003. The photograph shows the view from Glenmoor over its garden to the fields beyond. Part of the Disputed Land beyond the garden of Glenmoor can be seen in the photograph. It appears to be overgrown with brambles and tall rough grass and other weeds. Mr Hearn produced photographs he had taken in 2004 looking from the hillside to the south of the field up across the field and the Disputed Land to Glenmoor. Those photographs show a striking difference between the vegetation on the field and the vegetation on the Disputed Land. There is a mass of brown vegetation by the boundary between the Field and the Disputed Land and obviously tall rough green and brown vegetation on the rest of the Disputed Land.

 

14. I have no hesitation in finding that there was a fence along the boundary in 1993. The late Mrs Jory had covenanted to put up a fence. The black and white aerial photograph taken in the 1970s shows a fence along the relevant boundary. Mr Jory saw the fence in 1990. Mr Hocking saw it in 1994. There is also the hearsay evidence of Mrs Barker in her letter that she saw the fence in July 1993 but with a section of the wire open. It is clear that in 1995 Mr Hocking gave instructions to Mr Rose for work to be done to the fence and that Mr Rose invoiced Mr Hocking for work done, which invoice Mr Hocking passed on to the Jorys’ solicitor. It is wholly improbable that Mr Rose would be instructed to do the work and charge for it but not in fact do the work he was instructed to do. Further, I find that Mr Hocking did go to the Disputed Land in 1995 to see what work was needed to the fence and to look at the fence after the work was done. He would not have charged even a nominal sum for inspecting the site if he did not in fact do so. When set against all the evidence for the existence of a fence up to and including 1995, I do not find it possible to accept Mrs Turberville Smith’s evidence that she did not see any fence in 1995 or before. Mr Williams demonstrated that he was a highly partisan witness by the efforts he took to deny that the black and white aerial photograph showed a fence. It is obvious that that photograph shows a fence. Mr Williams’ evidence that there was no fence in 1995 or 1996 along the boundary between the field and the Disputed Land might be explained by the fact that, as a busy farmer, cutting a field belonging to others, as contract work, he did not pay much attention to whether there was a fence amongst brambles and overgrowth on the boundary of the field and the Disputed Land. Whether that is the explanation or there is some other, I do not accept his evidence that there was no fence along the boundary between the field and the Disputed Land.

 

15. I also find that the fence was standing in 2003 and up to 2006. Although Mr and Mrs Hearn were rash in writing to the Land Registry on 27^th March 2008 stating that they had photographs and video footage dated 2003 taken when they first went to view Glenmoor showing the Disputed Land completely overgrown and unattended without first checking that they did in fact have such images, I do not consider Mr Hearn to be a wholly unreliable witness. I consider that he would have looked at the Disputed Land when he came to view Glenmoor. Glenmoor borders and overlooks the Disputed Land and the field so one would expect a prospective purchaser to take an interest in that land. If there was a fence along the boundary between the Disputed Land and the field, it is likely that Mr Hearn would have seen it. Mr Rose repaired the fence in September 1995. It is highly unlikely that the fence would have disappeared without human intervention by 2003. There was no evidence of anyone taking away the fence Mr Rose repaired before 2003. I find that this was the fence Mr Hearn saw. Mr Hearn, however, was mistaken in stating that the fence was made of chainlink fencing; it was of posts with barbed wire.

 

16. Although I find that between 1993 and 2003 and probably until 1996, there was a fence along the boundary, I also find that part of it was rolled back in 1990 and 1993. Mrs Turberville Smith’s horses would have strayed into the Disputed Land if the wire had been rolled back and that is what happened. Mr Stevens trimmed the hooves of a pony on the Disputed Land in about 1995. Either he did so before Mr Rose repaired the fence or the wire was rolled back after Mr Rose had carried out his work. Mr Hearn was the only witness apart from Mrs Turberville Smith who provided evidence as to the use of the Disputed Land from 2003 onwards. He said that he did not see any horses on the Disputed Land but his knowledge is limited by the fact that he was not living at Glenmoor until 2006. It is quite possible that he would not have seen if horses were on the Disputed Land for some time during the period 2003 to 2006. The horses may not have been on the Disputed Land for long at any one time since it was mainly rough ground, covered with brambles and bracken and would not provide good grazing for horses. I accept the evidence of Mrs Turberville Smith that her horses have been going onto the Disputed Land since 1993. As regards the period after August 1995, Mrs Turberville Smith must have rolled back some of the wire to let her horses get onto the Disputed Land.

 

17. Mrs Turberville Smith said that she erected a wire fence across the stile shortly after she started grazing her horses in the field. Mrs Turberville Smith said specifically that this was to stop her horses from escaping. The wire was not, said Mrs Turberville-Smith, enough to stop people walking over the stile and into the field. Later, at some time in the late 1990s Mr Turberville Smith put an electric tape fence along the north eastern boundary of the field and the Disputed Land to stop his then wife’s horses escaping into the garden of the adjoining bungalow. Later still, in 2006, Mrs Turberville Smith had Mr Williams put up a post and electric wife fence along the length of the boundary with Glenmoor.

 

18. What Mrs Turberville Smith did on the Disputed Land was to allow her horses to go onto the Disputed Land, to put up some wire across the stile, to have her then husband in the 1ate 1990s put an electric tape fence along the boundary with Glenmoor to stop the horses escaping and to pull up poisonous ragwort to stop her horses being harmed. Mrs Turberville Smith did not put up any permanent fencing until 2006 when she had a post and wire fence put on the boundary with Glenmoor. Although Mrs Turberville Smith said in a statutory declaration she made on 21^st February 2008 that she cut the grass on the Disputed Land from time to time, in her oral evidence, she accepted that she did not cut the grass on the Disputed Land as distinct from the field. In her witness statement, Mrs Turberville Smith said that she had the Disputed Land topped to manage thistles, docks and general undergrowth on the Disputed Land. In cross-examination, Mrs Turberville Smith accepted that she had not had the Disputed Land topped until 2004. It is not surprising that Mrs Turberville Smith did little on the Disputed Land prior to March 2002 because before then she did not own the field but was a tenant.

 

The legal position

19. Section 15 of the Limitation Act 1980 provides as follows:

 

“15(1) No action shall be brought by any person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”

 

(6)   Part I of Schedule 1 to this Act contains provisions for determining the date of accrual of rights of action to recover land in the cases there mentioned.”

 

20. Schedule 1, paragraph 1, provides as follows:

 

“Where the person bringing an action to recover land, or some person through whom he claims, has been in possession in the land, and has while entitled to the land been dispossessed or discontinued his possession, the right of action, shall be treated as having accrued on the date of the dispossession order discontinuance.”

 

21. Schedule 1, paragraph 8, provides:

“(1) No right of action to recover land shall be treated as accruing unless the land is in the possession of some person in whose favour the period of limitation can run (referred to below in this paragraph as ‘adverse possession’) and where under the proceeding provisions of this Schedule any such right of action is treated as accruing on a certain date and no person is in adverse possession on that date, the right of action shall not be treated as accruing unless and until adverse possession is taken of the land.

(2)                           …..…..

(3)                           ………

(4) For the purpose of determining whether a person occupying any land is in adverse possession of land it shall be not assumed by implication of law that his occupation is by permission of the person entitled to the land merely by virtue of the fact that his occupation is not inconsistent with the latter’s present or future enjoyment of the land.

This provision shall not be taken as prejudicing a finding to the effect that a person’s occupation of any land is by implied permission of the person entitled to the land in any case where such a finding is justified on the actual facts of the case.”

 

22. Thus, the right of action to recover the land is barred whenever 12 years have elapsed from the time when any right of action accrued. It does not have to be a period immediately before an action is brought.

 

23. The question, therefore, is simply “…whether the Defendant squatter has dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner…Beyond that…the words possess and dispossess are to be given their ordinary meaning.” (per Lord Browne-Wilkinson in J A Pye (Oxford) v Graham [2003] AC 419 at paragraphs 36, 37).

 

24. Legal possession is comprised of two elements:

 

(1)                 A sufficient degree of physical custody and control (“factual possession”); and

 

(2)               An intention to exercise such custody and control on one’s own behalf and for one’s own benefit (“intention to possess”). “What is crucial is to understand that, without the requisite intention in law there can be no possession. Such intention may be, and frequently is, deduced from the physical acts themselves.” (ibid paragraph 40).

 

25. Actual possession has been described as follows:

 

“It signifies an appropriate degree of physical control. It must be a single and [exclusive] possession…Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed …Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else has done so.” (per Slade J in Powell v McFarlane (1977) 38 P and CR 452 at pp. 470-471, cited at paragraph 41 in J A Pye (Oxford) v Graham): -

 

“The only intention which has to be demonstrated is an intention to occupy and use the land as one’s own …If the evidence shows that the person was using the land in the way one would expect him to use it if he were the true owner, that is enough”, (per Lord Hope in J A Pye (Oxford) Ltd v Graham, at paragraph 71).

 

Thus, in short, what is required is the intention to exclude the whole world from control of the land, not the use of the land. If the squatter has and manifests the intention to exercise exclusive control of the disputed land, and in pursuance to that control permits the owner to make limited use of it, then he will have the intention to possess. There must be a deliberate intention to exclude the owner. He has to demonstrate an intention to occupy and use the land as one’s own

 

Findings

26. Mrs Turberville Smith was not in possession of the Disputed Land for 12 years prior to 1^st August 2008, being the date of Mr and Mrs Jory’s application for first registration. Prior to 2004, she allowed her horses to go onto the Disputed Land and put wire across the stile to stop them escaping when they did go onto the Disputed Land. Apart from pulling up any ragwort she saw, that was all she did. Mrs Turberville Smith was not using the Disputed Land as an occupying owner would have done. An occupying owner would have cleared the brambles, topped the land and taken other steps to improve the grazing. Significantly, Mrs Turberville Smith had the grass topped in the field but not on the Disputed Land. Mrs Turberville Smith did not take any steps to stop people coming over the stile onto the Disputed Land. Mrs Turberville Smith was at most taking advantage of a little extra free grazing. She was not in factual possession of the Disputed Land.

 

27. I also find that Mrs Turberville Smith has not demonstrated that she had the intention to possess the Disputed Land prior to 2004. As I have already said, Mrs Turberville Smith’s use of the Disputed Land fell short of the use that an occupying owner might have been expected to have made of the Disputed Land. She did not take any steps prior to 2004 to have the brambles and rough vegetation cut or to encourage the growth of grass on the Disputed Land. This is in contrast to her treatment of the field, which she did have topped. It is not possible to infer from Mrs Turberville Smith’s acts in letting her horses go onto the Disputed Land, putting some wire on the stile and pulling ragwort that she had an intention to exercise exclusive control of it, that she had an intention to possess it.

 

Acknowledgement of Title

28. The Respondents submit that Mrs Turberville Smith acknowledged the title of the late Mrs Jory to the Disputed Land by a letter written by Mr Turberville Smith to Mr Veale on 6^th June 1996. Mr Veale was a solicitor who had previously acted for Mrs Jory. The letter reads as follows

“I am trying to contact a client of Mr BJE Veale, a Mrs Jory, who owns a plot of land in Mullion.

As this piece of land is fairly close to my house, I was wondering if it was available for rent or purchase.

Last known contact with Mrs Jory was 15-20 years ago. Perhaps you would be kind enough to put me in contact with her or her relatives.”

As I have found that Mrs Turberville Smith was not in possession of the Disputed Land for 12 years prior to the date of the application for first registration, it is not strictly necessary for me to decide whether she acknowledged the title of the paper title owner by this letter. However, for the sake of completeness, I shall determine the point.

 

 

29. Section 29 of the Limitation Act 1980 provides that where the person in possession of land acknowledges the title of the person to whom the right of action has accrued, the right shall be treated as having accrued on and not before the date of acknowledgement. Section 30 provides that to be effective for the purposes of section 29, the acknowledgement must be in writing and signed by the person making it and further provides that the acknowledgement must be made to the person, or to the agent of the person, whose title or claim is being acknowledged.

 

30. There is no evidence that the person to whom Mr Turberville Smith’s letter was addressed was at the date the letter was received, the agent of Mrs Jory for the purposes of receiving any communications in relation to the Disputed Land. There is no evidence that Mrs Jory had given express authority to that person or had done anything for which it could be implied that he had such authority or had in any way held him out as having such authority. In those circumstances, the letter does not satisfy the requirement of section 30 that it be made to the person or to the agent of the person whose title is being acknowledged.

 

31. Had the addressee been the agent of Mrs Jory then I would have found it to be an acknowledgement of her title to the Disputed Land. In London Borough of Lambeth v. Bigden (CA 1.12.2000 unreported) a block of flats owned by the Council was occupied by a number of squatters. The Council proposed to sell the block to a third party. A number of squatters signed a petition to the Council seeking to persuade it not to sell to the third party. The petition did not question the right or power of the Council to sell. The Court of Appeal held that the petition was a clear acknowledgement by those signing it that the Council had the better title to the block because it implicitly recognised the power and right of the Council to sell. So here, the letter contains a clear acknowledgement of the right of Mrs Jory to let or sell the Disputed Land.

 

Conclusions

32. I shall direct the Chief Land Registrar to give effect to the application of Mr and Mrs Jory dated 30^th July 2008 for first registration of title to the Disputed Land, as if the objection of Mrs Turberville Smith had not been made. I shall also direct the Chief Land Registrar to cancel the application of Mrs Turberville Smith to be registered as proprietor of the Disputed Land.

 

Costs

33. My preliminary view is that costs should follow the event and accordingly, that Mrs Turberville Smith should pay the costs of the Respondents to be assessed on the standard basis, if not agreed. Any party who wishes to submit that some different order should be made, should serve written submissions on the other party and on the Adjudicator by 5pm on 14th May 2010.

 

 

BY ORDER OF THE ADJUDICATOR

 

 

 

 

 

Dated 30^th April 2010